Hamilton Legal: As Assault on Victims’ Rights

Hamilton Legal: As Assault on Victims' Rights

Sara Sirota

Sexual assault in the military is not a new phenomenon. The “invisible war” has long been an abhorrent mark on U.S. military history and it is getting worse. On November 6, the Pentagon announced that sexual assaults have risen 46 percent during the last fiscal year, with 3,553 complaints reported to the Defense Department during the first three quarters alone. These numbers come in the midst of the 2014 Defense Authorization Act the Senate will likely discuss in the upcoming weeks.

Many senators are now debating how the bill should address the increasingly prevalent issue of sexual assault. Senator Kirsten Gillibrand of New York insists that military prosecutors, rather than military commanders, should have the power to decide if assault cases can proceed. Senator Claire McCaskill of Missouri, on the other hand, maintains that commanders should have a say in assault cases, but they should not have the power to overturn convictions and must submit explanations to lessen a convict’s sentence. The Pentagon generally supports Senator McCaskill’s approach over that of Senator Gillibrand.

Senator Gillibrand has responded by claiming victims do not trust military commanders, which is the primary reason why victims do not come forward. However, Senator McCaskill claims that the increase in complaints in the last fiscal year merely demonstrates that victims are becoming more comfortable with reporting assaults.

The differences in the two senators’ approaches lie in whether they believe the issue of sexual assault should be addressed in the early stages of filing an assault case or once a conviction has been made. In the coming weeks, senators should support Senator Gillibrand’s proposal to include the new laws of the 2014 defense authorization bill.

Only legal experts should have the power to apply the law when they deem most fit. Following Senator McCaskill’s proposal, commanders would still have the ability to decide if an assault case can proceed. These commanders are not trained in the law; they did not attend law school. They may have alternative agendas other than ensuring justice is served fairly and equally. Thus, an adequately trained, unbiased military prosecutor must be the one to determine if an assault case can proceed. For the same reasons, commanders should not have the power to lessen a convict’s sentence, as Senator McCaskill suggests.

She has used the increase in complaints as a defense for commanders’ trustworthiness in protecting victims and ensuring justice, but this is irrelevant in solving the problem as a whole. Lawmakers should not applaud the increase in complaints as a sign of improvement in the fight against sexual assault in the military, for this distracts them from the underlying issue. The primary goal of the law is to prevent crime from ever occurring; the secondary goal is to punish people if they have committed a crime.

I will admit that the latter does help to administer the former, as potential assaulters may be deterred from committing crimes if they see others convicted and sentenced for sexual assault. However, this system will only work if those accused of sexual assault are actually brought before the courts. In order to ensure they are, it should once again be prosecutors, not commanders, who decide if assault cases can proceed.

This deterrence method is not the only means by which lawmakers can prevent sexual assault in the military. Senators should include in the 2014 Defense Authorization bill certain laws that mandate all members of the military to attend some form of educational workshop regarding sexual assault, the effects it has on victims and of course, the legal ramifications one might face for committing assault.

The damaging effects sexual assault has on its victims are tremendous. Some insist it can contribute to the post-traumatic stress disorder that many members of the military feel upon returning from battle. Lawmakers should not treat sexual assault in the military any differently than sexual assault in civilian life. Senators must realize this reality to ensure that justice is served. 

Contact Sara Sirota at [email protected]